NOEL ALVARADO, PETITIONER V. UNITED STATES OF AMERICA
No. 89-800
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A3-A24) is reported
at 882 F.2d 645. The opinion of the district court denying
petitioner's motion for a severance (Pet. App. A29-A30) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 9, 1989.
A petition for rehearing was denied on September 21, 1989. Pet. App.
A1. The petition for a writ of certiorari was filed on November 20,
1989. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the admission at petitioner's trial of his co-defendant's
statement, in which petitioner's name was replaced by the words
"another person," violated petitioner's rights under the Confrontation
Clause of the Sixth Amendment.
STATEMENT
After a jury trial in the United States District Court for the
Southern District of New York, petitioner was convicted on one count
of conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. 846; one count of possession of cocaine with
intent to distribute it, in violation of 21 U.S.C. 841(a)(1); and one
count of using a firearm during and in relation to a controlled
substance offense, in violation of 18 U.S.C. 924(c). He was sentenced
to eight years' imprisonment, to be followed by six years' supervised
release, and was fined $2,500. Pet. App. A26-A27. The court of
appeals affirmed. Pet. App. A3-A24.
1. The evidence at trial, which is recounted in the opinion of the
court of appeals, showed that an agent of the Bureau of Alcohol,
Tobacco and Firearms (ATF) made a number of undercover purchases of
cocaine at or near petitioner's apartment in New York City. On each
of these occasions, the agent purchased the cocaine from Alex Sanchez,
a minor, or from Charles Shannon, although petitioner or his
co-defendant Mayra Sanabria were seen in the apartment during some of
the transactions. After several purchases, ATF agents executed a
search warrant for the apartment. The agents arrested petitioner,
Sanabria, and Sanchez in the apartment and seized a large quantity of
cocaine, as well as paraphernalia used in packaging cocaine for sale.
The agents also recovered three loaded handguns. Pet. App. A5-A6.
After the search, the ATF agents took petitioner, Sanabria,
Sanchez, and Shannon to ATF headquarters. There, they advised
Sanabria of her rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Sanabria then gave a statement in which she implicated petitioner in
the packaging of cocaine for sale and in the sales to the undercover
ATF agent. Pet. App. A6-A8.
At the joint trial of petitioner and Sanabria, the government
presented a redacted version of Sanabria's statement through the
testimony of an ATF agent. The agent testified that Sanabria had said
that she had told "another person" not to sell drugs to a police
informant; that she helped "another person" package cocaine for sale;
that the person who supplied "another person" with cocaine used
teenagers to deliver it; and that she had received $500 from "another
person" at the holding cell at ATF headquarters. Pet. App. A6-A8.
The district court refused to admit Sanabria's statement that she
lived in an apartment with petitioner because the court found that the
statement could not be successfully redacted. Pet. App. A8 n.3. The
court instructed the jury that Sanabria's statement could be used only
against Sanabria. Pet. App. A18.
2. The court of appeals affirmed, rejecting petitioner's claim that
the admission of Sanabria's statement violated the Sixth Amendment as
interpreted in Bruton v. United States, 391 U.S. 123 (1968). The
court first held (Pet. App. A15) that Sanabria's redacted statement
did not inculpate petitioner on its face. The court also rejected
petitioner's claim that because other evidence at trial linked him to
the statement, it was improper to admit the statement. Pet. App.
A16-A18.
ARGUMENT
Petitioner renews his contention (Pet. 5-15) that the admission of
Sanabria's statement at their joint trial violated his rights under
the Sixth Amendment.
In Bruton v. United States, 391 U.S. 123 (1968), this Court held
that "a defendant is deprived of his rights under the Confrontation
Clause when his non-testifying codefendant's confession naming him as
a participant in the crime is introduced at their joint trial, even if
the jury is instructed to consider that confession only against the
codefendant." Richardson v. Marsh, 481 U.S. 200, 201-202 (1987). In
Marsh, the Court held that Bruton does not bar the introduction of a
co-defendant's confession if that confession has been redacted to
eliminate all reference to the defendant and is only indirectly linked
to the defendant by other evidence introduced at trial. The Court
explained that when a co-defendant's confession does not directly
incriminate the defendant, there is no reason to depart from "the
almost invariable assumption of the law that jurors follow their
instructions," 481 U.S. at 206, including the instruction to consider
the confession only against the co-defendant.
In Marsh, the Court did not decide the issue whether a trial court
may admit a co-defendant's "confession in which the defendant's name
had been replaced with a symbol or neutral pronoun." See 481 U.S. at
211 n.5. Since Marsh was decided, however, two courts of appeals, in
addition to the court below, have held that as long as the redacted
statement is not facially incriminating to the defendant and does not
suggest to the jury that it contained actual names, it may be admitted
at trial, subject to a limiting instruction. See United States v.
Vasquez, 874 F.2d 1515, 1518 (11th Cir. 1989), cert. denied, No.
89-5762 (Jan. 16, 1990); United States v. Garcia, 836 F.2d 385, 391
(8th Cir. 1987).
This approach fully accords with Marsh. That decision recognizes
that a jury cannot ignore a "powerfully incriminating" confession that
expressly implicates the defendant. See Marsh, 481 U.S. at 208.
Marsh makes clear, however, that a jury can be trusted to obey an
instruction to ignore inferentially incriminating statements, even if
evidence is introduced at trial that indirectly links the defendant
with the person named in the statement. In this case, there was no
evidence that directly identified petitioner as the other person
described in Sanabria's statement. Accordingly, no violation of the
Bruton rule occurred.
Petitioner contends (Pet. 9-13) that the court of appeals' decision
in this case conflicts with the decision of the Eleventh Circuit in
United States v. Petit, 841 F.2d 1546, cert. denied, 108 S. Ct. 2906
(1988). In Petit, however, the statement in question was redacted to
replace the defendant's name with the word "friend," and the evidence
at trial left no doubt that the statement "could reasonably be
understood only as referring to (defendant)." 841 F.2d at 1556. Under
these circumstances, the court of appeals found a violation of the
Bruton rule, although it held that the error was harmless.
In this case, by contrast, the government introduced evidence of
participation by two others in the alleged conspiracy. The undercover
ATF agent purchased cocaine from Alex Sanchez and Charles Shannon.
Either of those two could have been the person whom Sanabria urged not
to sell cocaine to a police informant, the person with whom Sanabria
was involved in packaging cocaine, or the person from whom Sanabria
got $500 in the holding cell. /1/ The jury could have concluded that
either of those two -- or perhaps someone else entirely -- was the
"()other person" referred to in Sanabria's statement. Because the
evidence at trial did not lead inexorably to the conclusion that
petitioner was the "()other person," the decision in this case does
not conflict with the decision in Petit.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
J. DOUGLAS WILSON
Attorney
JANUARY 1990
/1/ Petitioner claims that "the jury reasonably came to the
conclusion that (Sanabria) received (the money) from Alvarado." Pet.
15. There is no basis for this claim. Although the court of appeals
noted that the evidence established Sanabria's receipt of money from
"an accomplice," Pet. App. A14, the court also noted that Alvarado,
Sanchez, and Shannon were all brought with Sanabria to ATF
headquarters to be questioned. Pet. App. A6. Thus, the jury could
have decided that the words "another person" here referred to Sanchez,
Shannon, or some other unidentified accomplice of Sanabria's.